The Real Reason for Religious Freedom

John H. Garvey

Why do we protect freedom of religion? The commonsense answer,
which I think hits close to the truth, is that we protect it
because religion is important. That simple answer creates serious
problems for liberal theory, however, so it is seldom discussed
or defended by legal writers.

Some say freedom of religion is important because it is one
way (though only one) of exercising our autonomy as human beings
interested in making our own choices and shaping our own lives.
Religious devotees create lives for themselves around certain
kinds of beliefs and values. They will probably join a community
of like-minded people (a church). They typically have ideas about
their relationship to God that orient them in their daily life.
And so on. In doing these things they are protected by what
Laurence Tribe calls "rights of religious autonomy."

There is nothing unique about religious autonomy. It is a name
for one set of choices people make about how to live, but there
are other sets of choices within the field of autonomy: choices
about reproduction, risk taking, vocation, travel, education,
appearance, and sexual behavior. For Tribe, religious autonomy is
just one aspect of the larger "rights of privacy and
personhood."

Moreover, within the set of religious choices we attach value
to the act of choosing, not to particular outcomes. A decision to
reject God is entitled to the same protection as a decision to
follow him. As Gail Merel has put it, "Individual choice in
matters of religion should remain free: individual decisions are
to be protected whether they operate for or against the validity
of any or all religious views. . . . The individual is freed from
. . . the oppressive effects of government regulation in order to
believe or disbelieve as he chooses."

The Supreme Court has given some support to the idea that
autonomy is the value underlying religious freedom. It held in Torcaso
v. Watkins (1961) that Maryland had violated religious
freedom by requiring state officeholders to declare their belief
in God. This suggests that the Constitution attaches equal value
to belief and disbelief: the important thing is the choice, not
the outcome.

This conclusion is hard to square with the language of the
First Amendment, which protects only the free exercise "of
religion." Rejecting religion is an exercise of freedom, but
it is not an exercise of religion. (Amputation is not a way of
exercising my foot.) The free exercise clause by its terms seems
inconsistent with the idea of autonomy. It seems to favor choices
for religion over choices against religion.

One way to avoid this textual limitation is to define
"religion" very broadly-so broadly that even disbelief
is a kind of religion. This is what the Court did in interpreting
the draft law (U.S. v. Seeger, 1965). When I was a boy
people were exempt from military service if their "religious
training and belief" made them oppose war. Federal law
defined religious belief as "an individual's belief in a
relation to a Supreme Being involving duties superior to those
arising from any human relation." The Supreme Court
interpreted the law with an eye on the free exercise clause, and
said that the question was whether "the claimed belief
occup[ies] the same place in the life of the objector as an
orthodox belief in God holds in the life of one clearly qualified
for exemption." The idea of "God" is "more of
a hindrance than a help." We should think of God "not
as a projection 'out there' or beyond the skies but as the ground
of our very being." And "religion" is nothing more
than "the devotion of man to the highest ideal that he can
conceive."

The autonomy theory views religious freedom from an agnostic
standpoint. That is hardly surprising. It follows rather
naturally from the "autonomous" view of human nature.
If you scratch a person deep enough, the theory holds, you will
find a kind of free-floating self. If you looked at the surface
of my life you might say that I was a middle-class Irish
Catholic, husband, father of five children, law professor, part-
time musician, Celtics fan, and so on. I have naturally inherited
a variety of moral convictions (those typical of bourgeois
Catholics, or lawyers). I am also moved by various desires that
arise from and act upon the details of my life (I want
prestigious publishers for my books, money for my children's
education, time with my wife).

But my essential self is able to rise above these details. It
is unencumbered, unsituated. It can step back from my habitual
convictions and desires (my first-order preferences), reflect
critically on them, and change them to suit its own plan
(second-order preferences) for what my life should be like.
Exactly where I get my second-order preferences is a matter of
some dispute. Some say that I am guided by reason to universally
applicable principles. Others say that I just make them up. But
everyone agrees that it's up to me-to my unencumbered self-to
choose them, however I might find them.

This view of human nature is the basis for a powerful argument
in favor of freedom. A just political order has to take account
of the way people really are. It must, in other words, respect
their freedom to act as unencumbered selves on their second-order
preferences. In the case of religion this means that it must view
them as persons choosing, from a detached position, a theological
orientation. This is what I mean by saying that the autonomy
theory assumes the agnostic viewpoint. I might be a Catholic in
my daily life, but that is a first-order preference. The real
me is able to step back from it, assume an agnostic stance, and
make a fresh start. I might then renew my religious commitment;
but I might reject it. It doesn't really matter. The important
thing is that the real me should organize my life along lines it
freely chooses. The law protects religious freedom in order to
facilitate that choice.

The autonomy theory is in one sense too powerful. It holds
that a just society must let its citizens choose how to live
their own lives. Some of the relevant choices are religious, so
it follows that the government must not interfere with them. But
there is nothing special about religious choices in this
argument. They are on a par with promiscuous sex, cigarette
smoking, and the practice of optometry. Our instincts and the
language of our Constitution tell us, though, that there is a
difference. The Bill of Rights protects the free exercise of
religion. It says nothing about free love, free trade, or excise
taxes on tobacco. What we need is an argument that is capable of
protecting religion without protecting a lot of other activities
that we don't feel strongly about.

Having said this much, I will not pursue the point further. I
want to turn instead to a second problem with the autonomy
theory. It concerns its assumptions about human nature. One is
the factual assumption that we are capable of stepping back from
our convictions and desires and reorganizing them according to
second-order preferences that we freely choose. Another is the
more value-laden assumption that we should do this in
order to live "authentic" lives. There are those who
would dispute both assumptions, and people who want religious
freedom are among those most likely to do so.

Consider first the factual assumption. It is inconsistent in
several ways with recurring ideas in Christian theology. The
notion of original sin is meant to suggest the inherent
imperfection of human nature. In the strongest statements of this
idea-Augustine's is a good example-it entails our inability to
master sinful desires and to freely will doing good. In the
common phrase, human nature is the slave of sin. The counterpoint
to this unhappy view of human nature is the idea of grace. It is
a kind of sharing in divine life, a power that enables us to
control sinful desire, live good lives, and win salvation. But
grace is given to us by God gratuitously. We can't call it down
with a rain dance, and we can't behave as we should without it.
It is out of our control. This aspect of grace, followed to its
logical conclusion, leads to the Calvinist notion of
predestination: our salvation is entirely in God's hands, and
some are not saved.

This view of human nature affects the way many religious
people look at the idea of choice. The individual does not have
complete control over choosing the religious option. It is God
who makes the choice. I might have to accept God's choice and
cooperate in carrying it out, but I am cast as a supporting
actor. Thus the Jews understand themselves as the chosen
people. Their stories tell of people pursued by God and brought
back to do his work. Jonah, called by God to be his prophet,
tried to escape on a boat for Tarshish but was brought back by
miraculous means. In the New Testament, Jesus himself set the
example by praying before his death, "Father, if it be thy
will, take this cup from me. Yet not my will but thine be
done." God converted the apostle Paul by striking him to the
ground and blinding him. The scholar Alan Simpson has argued that
a similar experience of conversion is the essence of Puritanism.

Those who take this view of human nature will also disagree
with the autonomy theory about the value of running our own lives
according to our second-order preferences. That is not the basis
of real freedom. Augustine claims, for example, that real freedom
is freedom from the bondage of sin. And it is out of the question
for free will to realize this freedom through its own power; this
it can do only through the grace of God. It sounds paradoxical,
but it is accurate to say that Christian freedom consists not in
making our own choices but in obeying the law of God.

The autonomy theory, then, bases religious freedom on a view
of human nature that many religious people would reject. This
need not be a fatal defect. We also justify freedom of speech on
grounds that some speakers would reject-we say that it promotes
democracy, and yet we grant it to Nazis who don't believe in
democracy. But religious believers play a crucial role in free
exercise law. They are not like the Nazis. They are like the New
England town meeting-the paradigm around which the theory is
built. If the theory does not work for them there is probably
something wrong with it.

There is an additional doctrinal point. Free exercise law has
a tendency to assume a kind of split-level character. In addition
to its other shortcomings, the autonomy theory fails to explain
this tendency.

In some areas of the law believers and unbelievers get equal
protection. This is how it is with compelled worship and belief.
Agnostics as well as Quakers can object to a test oath. But there
are other areas where the law protects only believers. The free
exercise clause sometimes requires states to pay money to
religious believers-as in paying unemployment compensation to
those whose religion requires them to abstain from work on
certain days. It does not require payment to agnostics. It
excuses Amish children from public school, but not agnostics. It
protects the internal affairs of churches but not other
associations against government interference.

In recent years the Court has shown an inclination to even out
these differences. It has held that the Constitution does not, as
a general rule, require special treatment for religiously
required behavior. But this principle is still subject to a
number of qualifications. First and most obvious is the fact that
the free exercise clause still forbids discrimination against
religion. That in itself is a kind of special treatment. There is
no comparable rule protecting nonreligious action. The army can't
have a special rule against yarmulkes. But it can have a role
preferring yarmulkes to other nonuniform garb. Second, the Court
has left standing all the old cases requiring religious
exemptions (the ones about government benefits, school
attendance, church affairs, and so on). It has even enlarged upon
some of these.

These different levels of protection suggest that there are
several principles at work in the law of religious freedom, not
just one. The autonomy theory is appealing in its simplicity. But
it is too simple to explain the actual complexity of the law.

The second standard argument for freedom of religion is
political rather than ethical. The argument is that the denial of
freedom causes strife that leaves everyone worse off. We can find
both comparative and historical evidence for this conclusion.
Lebanon, Iran, India, and the Sudan have recently seen violent
struggles for religious supremacy. England and much of Western
Europe did so in the sixteenth and seventeenth centuries. The
Supreme Court has found parallels in early American history. As
Justice Felix Frankfurter argued in McGowan v. Maryland
(1961), "In assuring the free exercise of religion, the
Framers of the First Amendment were sensitive to the then recent
history of those persecutions and impositions of civil disability
with which sectarian majorities in virtually all of the Colonies
had visited deviation in the matter of conscience."

Like the autonomy theory, the political theory tries to
justify religious freedom from an agnostic viewpoint. It stresses
two kinds of harm that affect unbelievers. One is civil war. Even
noncombatants get killed in a civil war, and everyone suffers
from the collapse of the government and the economy. The other
harm is persecution. Unbelievers cannot be prevented from
practicing their faith. (They have none.) But if the government
wants to compel a particular form of religious observance it
might have to "torture, maim, and kill . . . 'atheists' or
'agnostics'" along with nonconforming believers (Zorach
v. Clauson, 1952).

This theory, like the autonomy theory, makes freedom
universally available. But here the value of freedom is
instrumental, not intrinsic. It leads to peace. If it didn't, we
would take another approach. The autonomy argument, by contrast,
said that freedom was intrinsically good for people like us. Of
course it had to make some controversial assumptions about what
kind of people we were. It is a virtue of the political argument
that it dispenses with those assumptions. And there is much else
to recommend it. It is realistic and practical, and goes some way
toward justifying a special place for religious freedom. It does,
though, have some weaknesses. The most important one is that it
is incomplete.

Consider first the case of fringe groups. In American society
there are, depending on how you count, hundreds or thousands of
them. They include small but well-known sects (Hare Krishnas,
members of Reverend Moon's Unification Church) and smaller,
little-known local cults. For my purposes they also include
unchurched believers-religious individualists who seek God in
their own way. The political defense of freedom gives no
protection to these people. If a group is sufficiently small the
government can simply stamp it out without running the risk of
civil war. Of course civil war is only one kind of strife.
Stamping out fringe groups is persecution, and the political
argument is designed to avoid that too. But what exactly is wrong
with fining, jailing, medicating, religious eccentrics? These
forms of punishment and cure are not in themselves objectionable,
the way cruel and unusual punishment would be. We routinely apply
them to drug offenders and think that we're doing the right
thing. The obvious answer is that there is a difference between
religious activity and drug dealing: one is good and the other is
bad. But that argument, which I will develop further below, takes
us beyond our concern with political strife.

So the political strife argument doesn't protect groups who
can't fight because they're too small. Neither does it protect
groups (some of them large) who are unwilling to fight. The Amish
on principle flee from controversy and eschew politics. Quakers
are well known for their pacifism. Groups that are far larger
engage in many practices that they see as desirable but not
essential, and that they would not defend with violence. Consider
the employment practices of Catholic schools. The political
defense of freedom gives no shelter to these groups if they pose
no threat to peace.

I think we can state these objections in an even more general
form. The political explanation tells us that freedom is good
because it brings peace. It does not tell us why we should prefer
freedom to other means of bringing peace. It gives us no
reason to object to the suppression or the establishment of
religion, provided the job is done ruthlessly enough to prevent
civil war. Religion was an insignificant cause of strife in the
Soviet Union from Stalin's time until very recently. There was
little freedom, but that is no objection if all that matters is
peace. The obvious advantage of freedom is that it respects piety
as well as peace. But we need an argument that will tell us why
it is good to respect piety.

The best reasons for protecting religious freedom rest on the
assumption that religion is a good thing. Our Constitution
guarantees religious freedom because religious people want to
practice their faith. As Mark DeWolfe Howe said in The Garden
and the Wilderness (1965): "Though it would be possible
. . . that men who were deeply skeptical in religious matters
should demand a constitutional prohibition against abridgments of
religious liberty, surely it is more probable that the demand
should come from those who themselves were believers."

One form of distinctively religious action is the performance
of ritual acts. These include prayer and other kinds of worship;
compliance with sumptuary rules governing dress, diet, the use of
property; the observance of sacred times (feasts and holy days)
and places (pilgrimages to shrines); rites connected with
important events in the believer's life (birth, death, maturity,
marriage); and so on.

Acts like these make sense only in the context of an entire
religious tradition. Acts of worship presuppose a belief in a
supreme being. In Christianity, Judaism, and Islam, God is
described as the Creator, Lord, and Judge of the world we live
in. The believer thinks that acts of worship are good because
they please God or harmonize with the order of nature. Other
forms of prayer presuppose a belief in a transcendent reality-a
kind of life outside our world that is more real than our own,
and that affects us in miraculous and mundane ways. We may go on
living there (in heaven or hell) when we die. Prayer is the means
by which we communicate with and try to influence this reality.
Still other rites presuppose the existence of a social
organization that enables like- minded people to act together.
Some are led by a specialized class of functionaries who teach,
supervise, and minister to ordinary members.

There is in our traditions a religious argument for religious
freedom that is peculiarly associated with ritual acts. It is,
simply, that it is futile to coerce people to perform ceremonies
(prayer, worship, declarations of belief) they don't believe in.
This idea has ancient roots, but it was most fully developed by
English Protestants during the seventeenth century. Locke appeals
to it in his Letter Concerning Toleration: "True
and saving religion consists in the inward persuasion of the
mind, without which nothing can be acceptable to God. And such is
the nature of the understanding, that it cannot be compelled to
the belief of anything by outward force." Coercion can be
worse than futile-it can be counterproductive. In Milton's
phrase, to force a ritual performance is "to compel
hypocrisy, not to advance religion."

In modern free speech law we often run across the idea that
the mind is a private domain which the government should not, and
as a practical matter cannot, enter. Locke's and Milton's claims
are different. They rest on a religious idea about our relations
with God. Coerced ritual is futile because it cannot put the soul
in touch with God. The individual cannot hear God unless he has
faith. And faith does not come to people just because they go
through the ritual motions. God gives it to whom he wills. It is
an idea characteristic of Protestantism that this happens in a
very individual way. The most effective medium is Scripture,
through which God may speak to the pious reader.

This distinctively Protestant "right of private
judgment" began as a protest against the Catholic Church's
claim to mediate between God and individual souls, but it served
equally well as an objection against state mediation. Roger
Williams underlines the connection in The Bloody Tenent:
"In vain have English Parliaments permitted English Bibles
in the poorest English houses, and the simplest man or woman to
search the Scriptures, if yet against their souls' persuasion
from the Scripture, they should be forced (as if they lived in
Spain or Rome itself without the sight of a Bible) to believe as
the Church believes."

Let me turn now to a second form of religious action, and a
different argument for religious freedom. Members of a religious
tradition typically want to acquire and spread knowledge about
the esoterica of their beliefs, ritual forms, ceremonial duties,
and so on. These special kinds of religious truth are often set
down in sacred texts (Bible, Torah, Qur'an) and elaborated upon
in written and oral commentaries (Talmud, Sunna). Believers like
to study these texts and commentaries, to discuss them with
others, and in some traditions to bring them to the attention of
unbelievers.

Those who feel this way sometimes argue that the freedom to
acquire and spread religious knowledge leads us to the truth. We
inherit this idea, like the last, from seventeenth-century
English Protestantism. It is the message of Milton's Areopagitica-an
expression of Puritan faith published in the same year as Roger
Williams' Bloody Tenent. Milton offered several reasons
why unlicensed printing would promote the discovery of religious
truth. One was the now familiar claim that truth will prevail
over falsehood in any free encounter. A less familiar but more
radical idea was that God's revelation is progressive. This makes
free inquiry not only safe but actually desirable. Individual
thinkers may wander astray, but the net social effect of freedom
is to bring us closer to God. "To be still searching what we
know not by what we know, still closing up truth to truth as we
find it . . . this is the golden rule in Theology as well as in
Arithmetic, and makes up the best harmony in a Church."

Let me reemphasize that these two arguments (futility, truth)
rest on religious premises (faith is a gift; revelation is
progressive). They will convince only religious believers. But
within that group they have carried the day. Consider the current
positions of the Catholic Church and the Presbyterian Church-the
two chief targets of Puritan polemicists like Milton and
Williams.

The Catholic Church's Declaration on Religious Freedom
was promulgated during the Second Vatican Council in 1965. The Declaration
offers several reasons for protecting religious freedom.
Prominent among them is the idea that faith arises through
internal communication between God and the individual: "For
of its very nature, the exercise of religion consists before all
else in those internal, voluntary, and free acts whereby man sets
the course of his life directly toward God. No merely human power
can either command or prohibit acts of this kind." Equally
prominent is the notion that freedom assists the search for
religious truth: Truth "is to be sought after in a manner
proper to the dignity of the human person and his social nature.
The inquiry is to be free, carried on with the aid of teaching or
instruction, communication, and dialogue. In the course of these,
men explain to one another the truth they have discovered, or
think they have discovered, in order thus to assist one another
in the quest for truth."

The 200th General Assembly of the Presbyterian Church (U.S.A.)
adopted a Policy Statement on religious liberty in 1988.
It too offers a variety of reasons for securing freedom. One is
that faith cannot be coerced: "Religious insight and faith
come from God, who exists over and beyond the powers and
principalities of earth. Such insight and faith are recognized
and received; they can neither be commanded or controlled by
civil authority, military power, or religious piety." The
other is that control of religion inevitably leads to suppression
of the truth, because "there are no foolproof human
mechanisms by which to test the authenticity of insight claimed
to be from God."

Let me turn now to a third variety of religious action, and a
different argument for religious freedom. Religious believers are
often bound by special moral obligations. These come from a moral
code that has some supernatural sanction (the halakhah in
Judaism, the shari'a in Islam). Such a code often demands forms
of behavior that the rest of society views as supererogratory,
morally neutral, or even (occasionally) wrong. A violation of the
moral code may be seen as something worse than a breach of dutya
kind of personal harm or insult to the author of the code, which
calls for repentance and might be punished or forgiven on a
transcendent level.

About these kinds of actions we might say that the government
should not force people to violate moral duties if (in their
system of belief) they will face transcendent consequences.
Otherwise the believer might have to choose between violating the
law and risking damnation. This is how it was with the early
Mormons who were convicted of practicing polygamy. Or the
believer might be forced to forgo a great good. In one of the
Supreme Court's recent cases an American Indian complained that
the government's use of a social security number for his daughter
would "rob [her] spirit."

Of course the government often causes great harm to
unbelievers as well. A religious pacifist fears for his salvation
when he is drafted, but the average Marine also suffers at the
thought of leaving his family and going into combat. From a
religious point of view, though, the cases are not comparable.
The harm threatening the believer is more serious (loss of
heavenly comforts, not domestic ones) and more lasting (eternal,
not temporary). That is what justifies this special kind of
freedom to religious claimants alone.

This is a consequentialist argument for freedom (though the
consequences it relies on are religious). But we could also make
a nonconsequentialist argument. Moral codes impose religious
duties, and there is something uniquely wrong with forcing people
to violate a religious duty even if they are not primarily
concerned about final rewards and punishments. Strict Calvinists,
for example, see no connection between the performance of
religious duties and election to heaven. But they can still
demand religious freedom. The focus of their claim is not their
own destiny. They are concerned instead with the effect on God,
as it were-they have to disappoint him in order to comply with
the law. The individual places great value in keeping faith with
such duties, and it is this value that religious liberty
protects.

These arguments about suffering and duty differ from the
earlier arguments about futility and truth. Claims about
suffering and duty focus on the personal interests of religious
believers. They are an appeal to rights in the modern sense-a
form of protection for people who are losers in the political
process. Claims about the futility of coercion and the discovery
of truth focus on a larger social interest. "We will all be
better off," the believer says, "if we allow religious
freedom."

Along with this difference in focus goes a difference in
coverage. The earlier arguments apply universally. Coercion is
futile no less for atheists than for Catholics and Jews. God may
give them faith or he may not, but the government can't help him
out. So too with the discovery of truth. It's no use letting only
right-thinking Christians search, because we're talking about
revelation and God can reveal himself to anyone. As the Gospel
says, "The spirit blows where it wills." The arguments
about suffering and duty, by contrast, offer protection only to
religious believers. The sufferings of the faithful are special
precisely because they believe in heaven, hell, eternal life, and
so on. The believers' duties are more compelling just because
they arise from God's commands.

This explains what I have called the split-level character of
free exercise law. In some areas the clause protects everyone.
This happens when we are dealing with ritual acts and the pursuit
of knowledge. Atheists and Quakers alike can object to laws
prescribing forms of faith (test oaths) and worship (school
prayers). Anyone can object to a law that forbids inquiry (the
teaching of evolution) for religious reasons. Likewise anybody
can object-on free exercise as well as free speech grounds-when
the government tries to limit communication about religiously
significant questions. These matters are all covered by the first
set of principles: compelled belief is futile; revelation is
progressive.

In other areas the free exercise clause protects only
religious believers. The cases where this happens are cases about
compliance with a moral code. The believer's faith might require
him to leave his job, or school, or the army. The Supreme Court
used to give serious consideration to all such claims. Today it
is harder to get special treatment, but it is not impossible. And
it remains true now, as before, that "to have the protection
of the Religion Clauses, the claims must be rooted in religious
belief" (Wisconsin v. Yoder, 1972). This disparity
is explained by the second set of principles: believers face a
special kind of suffering; they are subject to a higher kind of
duty.

The draft cases do not fit this picture. None of the reasons I
have given seems to cover the conscientious objection of
nonreligious young men to service in the armed forces. But we
should not generalize from these cases, any more than we should
make death penalty cases the pattern for rules of criminal
procedure. Killing is an extreme act, and the feeling of dread
that attends it can give even nonreligious duties an absolute
cast.

I have argued that we should take the believer's viewpoint
rather than the agnostic's viewpoint in thinking about religious
freedom. But my argument seems incomplete. It relies upon reasons
that only some people find convincing. And sometimes it protects
freedom only for those who are convinced. How can such a lopsided
idea justify one of our basic constitutional rights?

I admit that my argument for religious freedom is lopsided,
but I want to stress that this is not as serious a problem as it
might appear. This is so, first of all, because it does not
require agnostics to give up something for nothing. Free exercise
law has a split-level character. On one level it gives special
protection to religious believers. But on another level it treats
everyone alike. The government can't force anyone to perform
ritual acts, and it can't interfere with the pursuit of religious
knowledge. This means that everyone has a reason to support some
degree of religious freedom.

The standard arguments assume the agnostic point of view
because they want a rule of religious freedom that is fair to
everyone. Fairness here has two dimensions. One is consent.
Universal consent is a good indication that a rule treats
everyone fairly. (That is why social contracts are always adopted
unanimously.) The agnostic point of view tries to base freedom on
principles everyone can agree with. Revelation is out because
it's hidden from some people. We are asked to look instead at
facts about human nature and our social situation: the autonomy
argument refers to the unencumbered self; the political strife
argument refers to the causes of war and peace.

The other dimension of fairness is reciprocity. A contract is
fair in this sense if the parties share equally in the benefits
of the bargain. The autonomy argument satisfies this condition by
making religion just one of many protected choices, and by
offering equal religious freedom to believers and unbelievers.
The political argument says that freedom results in a public good
(peace) that everyone enjoys.

The religious defense of free exercise is lopsided because it
violates these conditions of fairness. The principles that it
relies on to justify freedom-futility, truth, suffering, and
duty-all refer in some way to religious beliefs that many people
do not hold. This makes it hard for some people to consent. The
religious defense also gives special protection to some kinds of
religious action. That is, it excuses religious actors from some
generally applicable laws when their moral code requires some
other course of conduct. This violates the condition of
reciprocity. Why should we prefer an argument of this kind to
arguments that seem to satisfy the canons of fairness?

For several reasons. First, the standard arguments themselves
fail the test of fairness. The autonomy theory, like my own
theory, appeals to assumptions about human nature (the
unencumbered self, the value of authenticity) that are
inconsistent with convictions that many religious people hold
about original sin, grace, faith, and revelation. In the real
world these people would not consent to a social contract based
on autonomy. To avoid this problem the theory asks everyone to
assume the agnostic viewpoint. But why not ask agnostics to
assume the religious viewpoint? That too would produce unanimous
consent. It would not be consistent with liberal theory, because
it commits us to a view of the good before we have resolved the
issue of rights. But we can't assume the correctness of liberal
theory. That is the very question we're debating. If my theory
won't get universal consent, neither will the autonomy theory.

The political strife theory is flawed in the same way. It asks
us to make the empirical assumption that we can only have civil
peace through religious freedom. But there are other ways of
avoiding strife; repression is one of them. Unless freedom has
some other good points, there is no reason to prefer it over
repression.

There is reason to doubt, then, that the standard arguments
are more fair than mine. My own approach, on the other hand, has
some real strengths that they lack. It is the most convincing
explanation for why our society adopted the right to religious
freedom in the first place. It is possible to imagine a society
of skeptics insisting on a free exercise clause, but the idea is
far-fetched.

The religious justification is also the reason why many,
perhaps most, religious believers claim the right to freedom
today. It enables them to perform their religious duties and to
avoid religious sanctions. It allows them to pursue the truth, as
God gives them to know the truth. And no other course could bring
them closer to God.

Finally, the religious justification is the only convincing
explanation for the split-level character of free exercise law.
Sometimes religious believers and nonbelievers are treated alike;
but sometimes the law protects only religious believers. This is
not something that we can explain by appeals to consent and
fairness. It violates the canon of reciprocity. The only
convincing explanation for such a rule is that the law thinks
religion is a good thing.

John H. Garvey is Professor of Law at the University of Notre
Dame Law School. This article is excerpted from his book What
Are Freedoms For?, just published by Harvard University
Press.